CHAPTER VII: CONCLUSIONS

International Law Studies – Volume 55

The International Law of Outer Space

Carl Q. Christol (Editor)

CONCLUSIONS

The

emergence

of the international

law

of outer space

brought

with

it a flurry of doctrinal excitement.

Now,

however,

despite the

novelty of

law

and

legal institutions for outer space, it is rapidly

becoming

evident that space relationships are subject to the tradi-tional principles, standards,

and

rules generally available to inter-national law.

For

the

moment,

the physical conquest of outer space

has

out-stripped

man's

views of his relations

with

others in

and

affecting space. It is as if the

human

race, for

an

eon

of time, instead of inhabiting the surface of the earth,

had

lain like the fish at the

bottom

of a vast sea.

But

now,

owing

to the

changes produced

by

tempestuous

science

and

technology,

man

has

moved

into

an

area even

beyond

the atmosphere.

He

has extended

his reach into the

uncharted

limits of a space ocean containing celestial bodies in the

form

of planetary islands.

The

resulting complexities rival such concepts as the light-year,

with

its

problems

of figuration,

compari-son,

and

human

appreciation.

One

is struck

by

the

awesomeness

of

these heterogeneous factors, which, while apparently verifiable,

none-theless

do

not

seem

quite real.

The

seemingly

unfathomable

facts of the reality of space

have

in

no

wise inhibited the

emergence

of

an

international

law

of outer space. It is a fact that the international

law

of outer space

began

to develop

from

the very

moment

the first artificial satellite

was

placed in orbit.

Between

that date

and

this,

man

has

not

been

at

a loss to explain his relationship to outer space

and

his interrela-tionships

with

men

of other nationalities, states,

and

international organizations.

The

flood of literature

has

pointed to substantial configurations of consensus

—

a

commonality

of legal viewpoint

which

appears to be as

amazing

as it

was

unanticipated.

Yet,

one

should not forget the all-abiding

permanence

of change.

Mankind

is still in the

"Model

T"

phase

of his use

and

exploitation of outer space.

With

the ever-changing

and

ever-enlarging spiral of scientific

and

technological achievement, it

may

well be that

when

432

For

example, the space vehicles of today's

world

have

limitations resulting

from

their

common

characteristics.

Their

maneuverability

is restricted because of the desirability to lock

them

onto a

pathway

employing

the kinetic

energy

of their

own

motion.

One

result is

that they are presently unable to avoid overflying national

bound-aries.

However,

it is entirely within the

range

of probability that

within the

proximate

future, space vehicles will be given

much

greater maneuverability in order to complete rendezvous missions,

engage

in station keeping,

and

participate in the transfer of

men

and

materials in outer space

and

on

celestial bodies.

Even

then it is

unlikely that they will be able to avoid transiting in close proximity above scores of subjacent states.

From

all indications it appears

to _{be exceedingly probable that space} vehicles will soon be capable of

moving

for thousands of miles at

an

altitude of

approximately

fifty statute miles

above

the surface of the earth.

However,

one should not suggest that the substance of internation-al space

law

is influenced only

by

scientific

and

technological con-siderations.

Important

as the creative

tempo

of the times

may

be, outer space is essentially a man-oriented area. Consequently, all of the elements of the social

complex (which

are,

by

definition,

man-oriented) will

have

their

impact

upon

the

law

of outer space

—

just as they

have

had and

will continue to

have

their undeniable influence

upon

all relational situations.

The

methodology

of the international

law

of outer space has not substantially departed

from

traditional guidelines.

Such

basic sources as general

customary

international law, treaties,

and

gen-eral principles of

law have

been relied

upon

in the

development

of

space law. Also, of very substantial

importance

have

been the unan-imously

adopted

Eesolutions,

sometimes

in the

form

of a

Declara-tion, of the

General

Assembly

of the

United

Nations.

They

con-stitute a "soft law," in contrast to the

"hard law"

of duly ratified

and

promulgated

international conventions.

Resource

states, as well as other

major

states,

have

acknowledged

that the terms of such

United

Nations Resolutions

must

be "respected"

and

this

view

has been generally

upheld

by

all states. Further,

and

of considerable

importance, it is

now

quite possible to

maintain

that

much

of the contents of such Resolutions are

no

longer to be considered as crea-tive of international space

law

principles, but instead

merely

declara-tory of operative principles based

upon

existing custom.

One

diffi-culty in this connection, but not

an

insuperable one, is that

customary

international

law

is

most

readily evidenced

by

the presence of a

claim of right to

perform an

affirmative act.

The

existence of such

difficult to determine the presence of

customary

rights

where

the

conduct to be

measured

is negative in context, that is,

where no

positive

and

affirmatively

ongoing

action is observable.

Customary

international

law

has generally sanctioned affirmative conduct,

but

has

had

a limited utility as a source of

law

where

there

has

been

a lack of observable conduct.

In

such a situation,

one

can

debate

whether

the international practice of inaction

has

resulted in a

customary

rule of

law

prohibiting the institution of the refrained action.

There

does not

appear

to be

any

substantial reason

why

the practice of inaction or nonaction in the case of wilfully

refrain-ing

from

placing

weapons

of mass-destruction capability into outer

space should not be

regarded

as subject to the processes of

customary

law. Obviously, express,

and

therefore

more

tangible,

forms

of

law

are to be preferred, such as

U.N.

Resolutions or Declarations

and

written international agreements.

International law,

and

with

it the international

law

of outer space,

employs

creative processes

somewhat

different

from

those

ob-served in

municipal

systems.

The

principal difference is that a

na-tion-state possesses centralized control over the law-creating processes as reflected in its legislative, executive, judicial,

and

administrative

institutions. Principles, standards,

and

rules of

municipal

law

are,

however, in the

main,

little different

from

those characteristic of

international law.

Any

legal principle is a starting point for legal reasoning; it is properly

broad

and

understandably

vague.

Any

legal rule delineates specific consequences

which

will follow either a breach of the rule or compliance

with

it.

In

its

most

typical situation, a rule

—

as in a criminal

law

context

—

provides that if one

murders

another, specific sanctions will result.

Any

standard,

on

the other

hand,

is the

occu-pant

of a

middle

ground

—

neither overly

broad nor vague;

neither severly precise

nor

widely ranging.

The

international

law

of outer space already consists of a

number

of substantial

and

valid principles. It is in search of rules,

which

it

will surely receive, especially

through

the process of express inter-national agreements. It is also

endeavoring

to

prove

its entitlement

to its

own

international legal standards.

In

these areas, it has been

able to

borrow

substantially

from

the corpus of existing interna-tional law.

International legal principles, like other legal principles

when

seen

from

the point of

view

of their creative qualities

and

434

is absolutely essential to the utility of this concept.

Thus,

in the

forum

of principles, policy

makers

may

rely

upon what

in their

considered

judgment

is

regarded

as a good, or reasonable, or ac-ceptable outcome.

They

may,

as in fact they do,

embark upon

the process of decision

through

deduction.

This

process is of substantial,

although not of exclusive, significance in

an

area as

new

as that of outer space activities. It is of

importance

because the

demands

for

law

are

somewhat

broader

than

man's

actual experiences with

the situations

which he

wishes to render subject to legal control.

The

other side of the coin is the inductive process.

Here

man

is

able to gather together

many

instances of good, reasonable, or ac-ceptable conduct

and

to

draw

broad

generalizations

from

a

myriad

of individual experiences.

In

practice, this process is

more

readily available to municipal law,

through

reference to the specific deci-sions of municipal courts,

than

to international

law with

its rela-tively infrequent use of the judicial process. International

law

has been able to

compensate

through

the

development

of its

own

key

processes.

Reference

by

the decision

maker

to

both

the deductive

and

in-ductive processes is valid,

and

neither has

preemptive

appeal to the exclusion of the other.

However,

with

the

development

of opera-tional space situations,

an apparent need

for adequate legal

guid-ance has arisen.

This

has resulted in close attention to clearly ob-servable

customary

practices

and

to contributions of the

United

Nations.

In

each there

have

been joined national

and

international

claims to

engage

in unrestricted space transit, provided the activi-ties

and

the uses of space vehicles

were

for peaceful purposes.

One

of the

themes

of this treatise has been that a

customary

in-ternational

law

of outer space has been developing concurrently

with

the expression of principles

by

the

United

Nations.

However,

until this point is carefully

weighed

and

fully accepted

by

informed

international lawyers

—

and

the procedures for

working

customary

international

law

into the fabric of that

law

are often slow

and

laborious

—

it

may

be easier, but

by

no

means

more

correct, to rely

upon

the authority of principles

and

deductive processes.

Resolutions 1721

(XVI)

and

1962

(XVIII)

of the

General

As-sembly

of the

United

Nations

were adopted unanimously

in 1961

and

1963.

They

proclaimed that certain general principles

apply

to outer space

and

to celestial bodies. Resolution 1721, recognizing

435

states, irrespective of the stage of their

economic

and

scientific

de-velopment,

commended

the following principles to states:

(1) international

law

is applicable to outer space

and

celestial bodies

(2) the

Charter

of the

United

Nations is applicable to outer space

and

celestial bodies;

(3) such areas are free for exploration

and

use

by

all states in

conformity with

international law;

and

(4) such areas are not subject to national appropriation.

Kesolution 1962 also recognized the

common

interest of

mankind

in the exploration

and

use of outer space for peaceful purposes.

This

Resolution restated,

with

somewhat

more

particularity, the

fore-going

principles.

In

assessing the significance of these

unanimously

adopted

principles, it should be borne in

mind

that they

were

the

product

of difficult

and

discerning international negotiations

ex-tending over a five-year period.

Their

legislative history does not

permit

them

to be disregarded.

Resolution 1962 also contains additional principles for outer

space.

These

principles,

which

relate to subjects

which more

readily

partake of the quality of legal rules, will unquestionably assume,

before too long, the legal

form

of express international

_agreements

and

conventions.

Included

in this category of legal subjects

were

the provisions that

(1) states bear international responsibility for national activi-ties in outer space;

(2) such activities

may

be

conducted

by

international organi-zations

and by

nongovernmental

entities;

(3) the peaceful exploration

and

use of outer space

by

a state shall be

guided

by

the principles of cooperation

and mutual

as-sistance so that

due regard

will be taken for the corresponding

interests of other states, particularly

when

related to space ac-tivities or experiments

which would

cause potentially

harmful

interference

with

the peaceful exploration

and

use of outer space

by

other states;

(4) the state

on whose

registry

an

object

launched

into outer

space is carried shall retain jurisdiction

and

control over such

object

and

personnel thereon while in outer space,

and

when

such object is

found

in another state, it is to be returned

upon

the submission of identifying data

by

the

launching

state

436

space,

and

on

the part of each state

from

whose

territory or facility

an

object is launched,

under

certain conditions

when

harm

results;

and

(6) states

have

a

duty

to render assistance to astronauts in the event of accident, distress, or

emergency

landing,

with

the provision that such persons shall be safely

and

promptly

re-turned to the state of registry of the space vehicle.

Moving

from

these

fundamental

principles to legal standards, it

must

be noted that this concept envisages the application of practi-cal experience

and

suitable logic to the principles

and

rules of the law.

By

reference to legal standards, the international

law

of outer

space takes into account a process for assuring the security needs

of nations

and

of the international

community.

Further, reference to standards

makes

possible the

development

of a

regime

in outer

space in

which

there

may

be a systematic and, at least, a

minimal

amount

of public order.

The

means

to effect national security in this

environment

will naturally involve several operational procedures

and

policy deter-minations. Defensive techniques,

employed

in the following

se-quence

and

in the appropriate context, being not prohibited

by

the international

law

of outer space are, consequently, permitted: the

employment

of

an

early

warning

system, including the process of

detection, tracking, monitoring,

and

inspection. Additionally, there

may

be

employed

detailed classification procedures leading ultimately

perhaps

to interception, neutralization, interdiction, or destruction of specifically undesirable

and

objectionable space objects.

It is the function of the legal standard to assist in determining

what

constitutes the specifically undesirable

and

objectionable ve-hicle or event.

This

in turn requires a timely factual

determina-tion of the existence of a real or significant threat to a nation's security.

Such

a threat

may

also be directed

toward

international

peace

and

security.

In

measuring

the nature of such threats,

through

the application of

human

judgment

to

any

actual or anticipated situation, the decision

maker

is obliged to take into account the express or verbally

communicated

position of the actual or probable

adversary.

The

decision

maker

is also obliged to consider the

im-plicit or contextual facts

which

are equally subject to empirical observation

and

rational analysis.

In

such a process, all reasonable implications, both express

and

inferred,

must

be taken into account.

part of

mankind,

as reflected in valid decisions reached in

impres-sive national

and

international forums, that present

and

future space

relations

must

give

due

consideration to the

fundamental

needs of the

members

of the

community

of nations. Decision

makers

in this

emerging

area of international law, as in other areas of interna-tional law,

need

to be

guided

by two major

considerations: ₍₁₎

They

must

build into the corpus of such

law

the readily perceived

ad-vantages of

mutual

benefit flowing

from

common

compliance,

and

(2)

They

must

also be equally

aware

of the detriments flowing

from

noncompliance with

reasonably held expectations.

Through

under-standing these

fundamental

concepts,

and by

conforming

to them,